Nguyen (Migration)

This matter concerned an appeal by Ms Nguyen against a decision to affirm the refusal of a Partner (Provisional) visa (subclass 309). The core dispute revolved around whether Ms Nguyen and Mr Pham were in a genuine and continuing spousal relationship as required by the Migration Act 1958 (Cth) and associated Regulations. The Tribunal was tasked with determining if the parties met the criteria for a married relationship under section 5F of the Act.

The legal issues before the Tribunal were whether the parties were validly married and, if so, whether they met the other requirements for a spouse relationship. These requirements, as outlined in section 5F(2) of the Act, include a mutual commitment to a shared life as a married couple to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. The Tribunal was directed to consider all circumstances of the relationship, including financial, social, household, and commitment aspects, as detailed in regulation 1.15A(3).

The Tribunal found that the parties had produced a valid Vietnamese Marriage Certificate, satisfying the requirement of being married for the purposes of the Act. However, the Tribunal considered the evidence regarding the nature of their relationship, noting that they had met in January 2013 and had spent a cumulative total of at most 136 days together since that time, with significant periods of separation due to living in different countries. Despite regular telephone contact and some shared time in Vietnam, the Tribunal concluded that the parties did not live together or demonstrate a commitment to a shared life as a married couple to the exclusion of all others, nor was the relationship found to be genuine and continuing in the manner contemplated by the Act.

Consequently, the Tribunal affirmed the decision not to grant Ms Nguyen the Partner (Provisional) visa, finding that she did not satisfy the criteria for the grant of the visa.